Peerasab and Another vs The Land Tribunal, Dharwad and Others

I have heard the petitioners'' learned Advocate as also the learned Government Advocate for respondents 1 and 2.

The petition has already been dismissed as against some respondents and some of the other respondents despite four attempts remain unserved. To my mind, this petition which was filed in the year 1993, deserves to he disposed of as the case qualifies for a remand on merits and formalities such as service etc., can be more easily complied with when the proceeding is before the Tribunal.

There is one inherent difficulty in the way of the petitioner insofar as the record before me indicates that the appeal that was pending before the Appellate Authority came to be dismissed for default and a miscellaneous application was filed for restoration. That application was not granted and technically, the present CA would be an infructuous exercise insofar as if the appeal itself has been dismissed and is no longer pending, there can be no question of transferring a dead case to the High Court. What the petitioners'' learned Advocate points out to me is that the petitioners cannot be penalised for the abrupt act on the part of the Government in abolishing the Appellate Authority while his restoration application was pending and that if the entire record has been transferred to this Court, that it is within the jurisdiction of this Court to consider the restoration application. In the interest of justice a Court will some times have to make allowances in order to avoid injustice and consequently, I am upholding the submission. The restoration application is technically treated as having been allowed and the appeal as having been restored.

What the petitioners'' learned Advocate points out to me on merits is that despite the occupancy rights having been granted in favour of the petitioner by the Tribunal in the year 1980 that once again, the same lands which were the subject-matter of another order, which is the order impugned in this case in the year 1981 whereby, the occupancy rights were jointly granted in favour of the petitioner and to other respondents. It is this order that is under challenge. To my mind, it will be necessary to set aside the impugned order and remand the case along with the records to the Tribunal for redecision. The Tribunal shall ensure that all the necessary parties or their legal representatives as the case may be, are on record and that they have notice of the proceedings. The Tribunal to permit the additional evidence, if any, of the parties desire to lead the same and to thereafter redecide the case. The parties to maintain status quo in the meanwhile and if any interim orders are necessary, liberty to move the Tribunal for this purpose. The writ petition succeeds to this extent and stands disposed of. The learned Government Advocate has been heard on; merits on behalf of respondents 1 and 2. No order as to costs.